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CHAPTER IV.

GOVERNOR PHILLIP TO GOVERNOR KING.

1788 TO 1806.

FOUNDATION OF NEW SOUTH WALES-THE CONSTITUTION AND JUDICIAL SYSTEM -THE LASH-THE LAW-THE FIRST CHURCH-FAMINE-V - WILD CATTLE

FOUND-GOVERNOR HUNTER-GOVERNOR KING.

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N the 26th January the English fleet, having been brought round, anchored in deep water close along the shore of Sydney Cove, so called after Lord Sydney, one of the lords of the Admiralty; a formal disembarkation took place a detachment of marines and blue jackets leaped from their boats into the shades of a primæval forest; after hoisting British colours "near where the colonnade in Bridge-street now stands," the proclamation and commission constituting the colony were read, a salute of small arms was fired, and the career of the province of New South Wales commenced.

The whole party landed amounted to one thousand and thirty souls, who encamped under tents, and under and within hollow trees, "in a country resembling the more woody parts of a deer park in England.”

Such were the accidents of the foundation, and such the founders, of our colonial empire in Australia.

No sooner had the convict colonists been disembarked, and the erection of the necessary buildings commenced, than the want of a sufficient body of artificers was experienced. The ships furnished sixteen, and the prisoners twelve, carpenters; and by a piece of unexpected good fortune, which caused much rejoicing, "an experienced bricklayer was discovered among the convicts. He was at once placed at the head of a party of labourers, with orders to construct a number of brick huts: in the meantime the governor occupied a tent.”

This first example is a fair specimen of the manner in which the penal discipline in the colony was conducted for a long series of years. A useful man was placed in authority, and allowed a variety of indulgences, quite irrespective of his moral qualities. The greatest ruffians became overseers, and occupied places of trust. Men of no use-mere drudges-were treated worse than beasts of burden.

In the month of May the entire live stock of the colony, public and private, consisted of—

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18 Turkeys,

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The cattle were of the Cape breed, humpy on the shoulders, and long-horned, a fact which it afterwards became of consequence to remember.

In the ensuing month it is recorded as a public calamity that two bulls and four cows wandered away from the pickpocket herdsman who had them in charge, and were lost in the woods. In the sequel it was shown that the cattle were better colonists than their owners.

The entrance to Port Jackson, as already partly described, is through projecting capes, or two heads-which conceal and shelter the far extent of the harbour. A channel, about two miles in breadth, opens a land-locked harbour, about fifteen miles in length, of irregular form, the shores jagged with inlets, coves, and creeks, which, when the first adventurers landed, were covered to the water's edge with the finest timber. At the western extremity a current of fresh water mingling with the sea tide gave signs of the winding Paramatta River, navigable for vessels of small burden for eighteen miles.

The settlement was planted on the banks of an inlet or "cove," about half a mile in length and a quarter in breadth, which received a considerable stream of fresh water at the upper end.

The native blacks, who then swarmed along the whole coast from Botany Bay, and far beyond in either direction, came to meet the white strangers naked, armed with the shield, the spear, and the boomerang, which the settlers often took for a wooden sword.

From the circumstance of the aborigines not being subject to the authority of any sort of government except that of the strongest man, from the imperfection of their arms, and their mental incapacity for combination, their communications and skirmishes with the white intruders do not occupy that place in the history of the colony which is filled by the Red Indian tribes in the history of North America, or the semi-civilized Peruvians and Mexicans in that of the Spanish South America.

On the 7th February, 1788, the king's commission for the government of the "territory of New South Wales and its dependencies" was

THE FORM OF GOVERNMENT AND COURTS OF LAW.

37 read. By this instrument the colony was declared "to extend from the northern extremity of the coast called Cape York, in the latitude of 10° 37', to the southern extremity of South Cape, in the latitude of 43° 39', including all adjacent islands within those latitudes, and inland to the westward as far as the 135th degree of east longitude."

At the same time were read the letters patent issued under the 27th George III., cap. 56, for establishing courts of civil and criminal judicature in the colony. Under these the governor, or, in his absence, the lieutenant-governor, was authorized, whenever, and only when, he saw fit, to summon a court of criminal jurisdiction, which was to be a court of record, and to consist of the judge-advocate, and six such officers of the sea or land service as the governor should nominate by presents under hand and seal. This court was empowered to inquire into and punish all crimes of whatever nature; the punishment to be inflicted according to the laws of England, as nearly as might be, considering and allowing for the circumstances and situations of the settlement and its inhabitants; the charge to be reduced to writing; witnesses to be examined upon oath; the sentence of the court to be determined by the opinion of the majority; but the punishment not to be inflicted, unless five members of the court concurred, until the king's pleasure should be known; the provost-marshal to cause the judgment under the governor's warrant.

In this court the judge-advocate was president (there was no provision that he should be a man of legal education); he was also to frame and exhibit the charge against the prisoner, to have a vote in the court, and to be sworn like the members of it. The military officers were to appear in the insignia of duty-sash and sword; they had the right to examine witnesses as well as the judge-advocate; he alone centred in his person the offices of prosecutor, judge, and jury.

There was also a civil court, consisting of the judge-advocate and two inhabitants of the settlement, who were to be appointed by the governor, "empowered to decide, in a summary manner, all pleas of lands, houses, debts, contracts, and all personal pleas, with authority to summon parties, upon complaint being made, to examine the matter of such complaint by the oath of witnesses, and to issue warrants of execution under the hand and seal of the judge-advocate." From this court an appeal might be made to the governor, and from him (where the property exceeded the value of three hundred pounds) to the king in council. To this court was likewise given authority to grant probates of wills, and administration of the personal estates of intestate persons dying within the settlement.

In the month of May the entire live stock of the colony, public and private, consisted of—

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The cattle were of the Cape breed, humpy on the shoulders, and long-horned, a fact which it afterwards became of consequence to remember.

In the ensuing month it is recorded as a public calamity that two bulls and four cows wandered away from the pickpocket herdsman who had them in charge, and were lost in the woods. In the sequel it was shown that the cattle were better colonists than their owners.

The entrance to Port Jackson, as already partly described, is through projecting capes, or two heads-which conceal and shelter the far extent of the harbour. A channel, about two miles in breadth, opens a land-locked harbour, about fifteen miles in length, of irregular form, the shores jagged with inlets, coves, and creeks, which, when the first adventurers landed, were covered to the water's edge with the finest timber. At the western extremity a current of fresh water mingling with the sea tide gave signs of the winding Paramatta River, navigable for vessels of small burden for eighteen miles.

The settlement was planted on the banks of an inlet or "cove," about half a mile in length and a quarter in breadth, which received a considerable stream of fresh water at the upper end.

The native blacks, who then swarmed along the whole coast from Botany Bay, and far beyond in either direction, came to meet the white strangers naked, armed with the shield, the spear, and the boomerang, which the settlers often took for a wooden sword.

From the circumstance of the aborigines not being subject to the authority of any sort of government except that of the strongest man, from the imperfection of their arms, and their mental incapacity for combination, their communications and skirmishes with the white intruders do not occupy that place in the history of the colony which is filled by the Red Indian tribes in the history of North America, or the semi-civilized Peruvians and Mexicans in that of the Spanish South America.

On the 7th February, 1788, the king's commission for the government of the "territory of New South Wales and its dependencies" was

THE FORM OF GOVERNMENT AND COURTS OF LAW.

37 read. By this instrument the colony was declared "to extend from the northern extremity of the coast called Cape York, in the latitude of 10° 37', to the southern extremity of South Cape, in the latitude of 43° 39′, including all adjacent islands within those latitudes, and inland to the westward as far as the 135th degree of east longitude."

At the same time were read the letters patent issued under the 27th George III., cap. 56, for establishing courts of civil and criminal judicature in the colony. Under these the governor, or, in his absence, the lieutenant-governor, was authorized, whenever, and only when, he saw fit, to summon a court of criminal jurisdiction, which was to be a court of record, and to consist of the judge-advocate, and six such officers of the sea or land service as the governor should nominate by presents under hand and seal. This court was empowered to inquire into and punish all crimes of whatever nature; the punishment to be inflicted according to the laws of England, as nearly as might be, considering and allowing for the circumstances and situations of the settlement and its inhabitants; the charge to be reduced to writing; witnesses to be examined upon oath; the sentence of the court to be determined by the opinion of the majority; but the punishment not to be inflicted, unless five members of the court concurred, until the king's pleasure should be known; the provost-marshal to cause the judgment under the governor's warrant.

In this court the judge-advocate was president (there was no provision that he should be a man of legal education); he was also to frame and exhibit the charge against the prisoner, to have a vote in the court, and to be sworn like the members of it. The military officers were to appear in the insignia of duty—sash and sword; they had the right to examine witnesses as well as the judge-advocate; he alone centred in his person the offices of prosecutor, judge, and jury.

There was also a civil court, consisting of the judge-advocate and two inhabitants of the settlement, who were to be appointed by the governor, "empowered to decide, in a summary manner, all pleas of lands, houses, debts, contracts, and all personal pleas, with authority to summon parties, upon complaint being made, to examine the matter of such complaint by the oath of witnesses, and to issue warrants of execution under the hand and seal of the judge-advocate." From this court an appeal might be made to the governor, and from him (where the property exceeded the value of three hundred pounds) to the king in council. To this court was likewise given authority to grant probates of wills, and administration of the personal estates of intestate persons dying within the settlement.

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